A litigant should not suffer for counsel’s negligence where proper representation was duly arranged.

In brief

The question

1. Whether the respondents had shown sufficient cause under Order IX Rule 13 CPC for setting aside the ex parte decree and restoring the proceedings.

The court held

The High Court answered the issues in favour of the respondents. It held that the Additional District Judge had correctly exercised power under Order IX Rule 13 CPC in setting aside the ex parte decree and restoring Misc. Case No. 47 of 2007, particularly because the respondents’ non-appearance resulted from their advocate’s negligence rather than deliberate or unexplained default on their part.

It also directed

The writ petition was dismissed, and the impugned order was affirmed. There was no order as to costs.

01Facts

The petitioners challenged the order dated 23 March 2021 passed by the Second Additional District Judge, Nainital in Misc. Case No. 18 of 2020. By that order, the court allowed the respondents’ application under Order IX Rule 13 of the Code of Civil Procedure, 1908, set aside the ex parte decree obtained by the petitioners, and restored Misc. Case No. 47 of 2007 to its original number, subject to payment of costs of ₹10,000.

¶ 1

The respondents, who were senior citizens and permanent residents of Jammu and Kashmir, stated that Respondent No. 2 had retired from Jammu Medical College and that Respondent No. 1 was old and ailing. Since they could not attend proceedings at Nainital on every date, they engaged a lawyer who assured them that he would inform them whenever their presence was required. They alleged that the matter proceeded ex parte because of the lawyer’s negligence.

¶ 2

02Issues

i.1. Whether the respondents had shown sufficient cause under Order IX Rule 13 CPC for setting aside the ex parte decree and restoring the proceedings.

¶ 1–3

ii.2. Whether the respondents could be made to suffer for their advocate’s failure to attend or properly conduct the proceedings.

¶ 3–5

iii.3. Whether the High Court, in exercise of its writ jurisdiction, should interfere with the Additional District Judge’s order.

¶ 6

03Law Applied

The Court applied Order IX Rule 13 CPC, under which an ex parte decree may be set aside where the defendant establishes sufficient cause for non-appearance.

It relied principally on Rafiq v. Munshilal, (1981) 2 SCC 788, which holds that a litigant who has taken all reasonable steps by engaging an advocate should not ordinarily suffer because of the advocate’s inaction, omission, or negligence.

¶ 4

The Court also relied on the Full Bench decision in Bank of India v. Mehta Brothers, AIR 1981 J&K 95, which states that a litigant is generally not responsible for counsel’s negligence where the litigant has made adequate arrangements for representation and has done everything reasonably expected of him; the focus under the CPC is primarily on the conduct of the party, not merely that of counsel.

¶ 5

Provisions in the judgment · 1 · Linked ones open on LawLens

Code of Civil Procedure, 1908 Section 9

04Reasoning

The High Court found that the respondents had provided a plausible explanation for their absence: they were elderly persons residing in Jammu, one was retired and the other was ailing, and they had engaged counsel to represent them at Nainital.

¶ 1–2

Applying Rafiq and Bank of India, the Court held that, once the respondents had entrusted the matter to an advocate and had no apparent remissness of their own, the consequences of counsel’s failure to attend could not ordinarily be imposed upon them.

¶ 4–5

Since the Additional District Judge’s decision to set aside the ex parte decree was consistent with these established principles, the High Court found no jurisdictional or legal error warranting interference in writ proceedings.

¶ 6